Judge: Teresa A. Beaudet, Case: 22STCV24209, Date: 2023-03-27 Tentative Ruling

Case Number: 22STCV24209    Hearing Date: March 27, 2023    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

            Background

Plaintiff Victoria Trevisan (“Plaintiff”) filed this action on July 27, 2022 against

Defendants Merck & Co., Inc., Merck Sharp & Dohme Corp., Providence Health System – Southern California, Providence Medical Institute, Providence Medical Associates, Inc., and Tristy Shaw, M.D. The Complaint asserts causes of action for (1) negligence, (2) strict liability (failure to warn), (3) strict liability (manufacturing defect), (4) breach of warranty, (5) fraudulent concealment, (6) fraudulent misrepresentation, (7) violation of California’s Unfair Competition Law, (8) medical malpractice, (9) battery, (10) breach of fiduciary duty.

Providence Medical Associates, Inc. and Tristy Shaw, M.D. (jointly, the “PMA Defendants”) demur to the eighth, ninth, and tenth causes of action of the Complaint. Plaintiff opposes.

Merck & Co., Inc. and Merck Sharp & Dohme LLC (formerly Merck Sharp & Dohme

Corp.) (jointly, the “Merck Defendants”) demur to the third, fifth, and sixth causes of action of the Complaint. The Merck Defendants also move to strike portions of the Complaint. Plaintiff opposes both.

Discussion

As an initial matter, the Court notes that the PMA Defendants’ counsel’s declaration filed in support of the PMA Defendants’ demurrer indicates, inter alia, that “Counsel sent a detailed meet and confer letter to plaintiff’s counsel, outlining the issues that will be raised by this demurrer on October 7, 2022. Plaintiff’s counsel failed to respond to this correspondence. As such, the parties were unable to resolve the issues raised in this demurrer.” (Schwake Decl., ¶ 2.)

            In addition, the Merck Defendants’ counsel’s declarations filed in support of the Merck Defendants’ demurrer and motion to strike indicate, inter alia, “[o]n October 20, 2022, counsel for Merck notified counsel for Plaintiff that Merck intended to demur to and move to strike portions of Plaintiff’s complaint, identifying the same bases for these motions that had been the subject of past telephonic meet and confers in similar Gardasil matters filed by Plaintiff’s counsel. Merck’s counsel offered to meet and confer telephonically in the event Plaintiff’s position had changed. Plaintiff’s counsel acknowledged the correspondence and stated that Plaintiff’s position had not changed. Accordingly, counsel for the Parties were unable to reach an agreement that would resolve the objections raised in Defendants’ Demurrer and Motion to Strike.” (Esterkin Decls., ¶ 3.)

The Court notes that the PMA Defendants’ counsel’s declaration does not demonstrate that Plaintiff and the PMA Defendants met and conferred by telephone or in person. The Merck Defendants’ counsel’s declarations also do not demonstrate that Plaintiff and the Merck Defendants met and conferred by telephone or in person regarding the Merck Defendants’ objections to the instant Complaint. 

Pursuant to Code of Civil Procedure section 430.41, subdivision (a), “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Emphasis added.) In addition, “[b]efore filing a motion to strike…the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion to strike for the purpose of determining if an agreement can be reached that resolves the objections to be raised in the motion to strike.” (Code Civ. Proc., § 435.5, subd. (a), emphasis added.) Such meeting and conferring must be done in good faith with an effort to try to resolve the issues subject to the demurrers and motion to strike.

In light of the foregoing, the hearings on the PMA Defendants’ demurrer and the Merck Defendants’ demurrer and motion to strike are continued to April 14, 2022 at 2 p.m. in Dept. 50. 

The PMA Defendants and the Merck Defendants are¿ordered to meet¿and confer¿with Plaintiff¿regarding their respective demurrers and motion to strike within 10 days of the date of this order.¿If the parties are unable to resolve the pleading issues¿or if the parties are otherwise unable to meet and confer in good faith, the PMA Defendants and the Merck Defendants are to¿thereafter¿file and serve¿declarations setting forth the efforts to meet and confer in compliance with¿Code of Civil Procedure section 430.41, subdivision (a)(3) and Code of Civil Procedure section 435.5, subdivision (a)(3) within 15 days of this order.¿  

The Case Management Conference also is continued to April 14, 2023 at 2:00 p.m. in Dept. 50.

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The PMA Defendants and the Merck Defendants are ordered to give notice of this order. 

DATED:  March 27, 2023                              ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court